A Conspectus of Child Rights & Protection
This article i.e. “A Conspectus of Child Rights & Protection” written by Rudrank Shivam Singh and Aman Pathak gives a true and detailed account of Child Rights & Protection. “Our greatest obligation to our children is to prepare them to understand and deal effectively with the world in which they will live and not with the world we… Read More »
This article i.e. “A Conspectus of Child Rights & Protection” written by Rudrank Shivam Singh and Aman Pathak gives a true and detailed account of Child Rights & Protection.
“Our greatest obligation to our children is to prepare them to understand and deal effectively with the world in which they will live and not with the world we have known or the world we would prefer to have.”[1] – KIRK, Grayson
I. Introduction
“Under the Laws of Moses and Israel, the head of every household who takes a child into his household puts himself in loco parentis and is liable for the support of such infant as though it were his own.”[2]
The principle of loco parentis can well be accorded with State, which makes it its novel duty to provide care and protection to all children.
A child means every human being below the age of 18 years, which happens to be a universally accepted definition of a child. Therefore, a child is a human being with rights and dignity and also specific rights that recognize their specific needs. What characterizes the child is their youth and vulnerability. The child is growing, a future adult that has no means to protect himself.[3] In this regard, children become the object of particular interest and specific protection. A child must be catered to in such a manner that they become the building blocks of the country they reside in as is empirical.
II. Rights of children reserved under the Constitution of India
India has always maintained a distinct legal entity for persons below the age of 18 years, which manifests itself through its policies. It is precisely why people can vote, be issued a driving license or enter into legal contracts only after attaining the age of 18 years.
The legal understanding of the age of maturity in India is not in consonance with the UNCRC but dates back to a pre-independence law namely the Child Marriage Restraint Act of 1929, which prescribes the age of maturity for girls to be 18 and boys 21 years of age. India changed its law on Juvenile Justice to ensure that persons below the age of 18 years, who required care and protection, duly received it from the State after the ratification of UNCRC in 1992.
Children like every other citizen of the country share some fundamental rights rendered under the Constitution.[4]
- Right to equality (Article 14).
- Right against discrimination (Article 15).
- Right to personal liberty and due process of law (Article 21).
- Right to being protected from being trafficked and forced into bonded labour (Article 23).
Along with the basic rights that are guaranteed under the Constitution, there are several specific rights reserved for people under the age of 18 years by the Constitution and International Legal Instruments India has accepted by ratifying.
- Right to free and compulsory elementary education for all children in the 6-14 years age group (Article 21A).
- Right to be protected from any hazardous employment till the age of 14 years (Article 24).
- Right to be protected from being abused and forced by economic necessity to enter occupations unsuited to their age or strength (Article 39(e)).
- Right to equal opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and guaranteed protection of childhood and youth against exploitation and against moral and material abandonment (Article 39(f)).
The Constitution of India, 1950 mandates under Article 15(3) for the State to make special provisions for children by way of which the State can fortify their rights and ensure protection to the children.
III. Covenants prescribing Rights of Children.
The advent of the United Nations changed policies towards the rights of children, the year 1946 saw the establishment of ICEF (International Children Emergency Fund) present-day UNICEF (United Nations International Children Emergency Fund).
Apart from the Universal Declaration of Human Rights, which covers the rights of children, another breakthrough has been the International Covenant on Civil and Political Rights.
A. Article 24 of the ICCPR[5]
- Every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State.
- Every child shall be registered after birth and shall have a name.
- Every child has the right to acquire a nationality.
B. Minimum Age Convention, 1973[6]
- Article 1 mandates that the member states shall take effective measures to abolish child labour and shall take steps to progressively increase the minimum age for admission in employment.
- Article 2-10 specifically mandates that member states shall not jeopardize the health, safety or morals of a young person. Moreover, it mandates that the principles of the Constitution of the International Labour Organization must be strictly adhered to vis-à-vis the protection of children.
Throughout the period from 1960-1990, there have been umpteen improvements laid down by the United Nations and its other arms in relation to the protection of rights of children, the conventions and protocols have also been undertaken by member states.
The basic principles enshrined in the charter of the United Nations recognizes the dignity of each and every human being, however, there are various aspects of freedom & rights which have been specifically associated with children.
The primary reason for such channelization is that almost all the member States throughout had agreed to the fact that the development of today’s children will only bring out the best future tomorrow. Therefore, it was through the United Nations Convention on the Rights of Child that member states agreed to accept and ratify the principles established by the UNCRC.
India ratified the UNCRC (United Nations Convention on Rights of the Child) in the year 1992, which marked the emergence of a new framework due to which law on Juvenile Justice, Care & Protection took a reformed and refined shape. Among other aspects, Article 4 UNCRC establishes few primary rights, which include social, economical, civil, political and cultural rights.
Right to life having a wide ambit covers developmental needs as well, which undertakes education, nutrition, healthy environment, social security, the highest attainable standard of health. The immediate rights include protection against all forms of exploitation, abuses and inhumane treatment.[7]
As per the 2019 report of UNICEF the mid-term mark of 2018-2021 strategic plan goal has been achieved up to 74%, these included prevention of malnutrition, improvement in education, basic sanitation, gender equality, safe drinking water and skill development among others.[8]
IV. Contemporary Legislations in India.
A. The Children Act, 1960[9]
The children Act, 1960 was enacted to consolidate the laws relating to children and to look after the needs of the distressed children in the country. The enactment included various prohibitions on behaviour meted out to children such as cruelty, forced begging, bail and custody of delinquent children.
Apart from the establishment of competent authorities and institutions such as children courts, welfare boards, observation homes etc. the Act also lays down the procedural aspects for these governing bodies. However, the Children Act 1960 was enacted in an era when specific legislation was not in place and with due course of time, specific legislations have emerged and the Children Act 1960 has diluted to a great extent as the present legislations have an overriding effect.
B. Child Labour (Prohibition and Regulation) Act, 1986.
‘Child Labour’ is defined as any work within or outside the family that involves time, energy and commitment, which affects the ability of a child to participate in leisure, play and educational activities and often leads to a myriad of problems engendering lasting physical as well as psychological impairment.
The Act prohibits the engagement of children in all occupations and prohibits the engagement of adolescents in hazardous occupations.[10] The Act delineates ‘adolescent’ under section 4(i) as any person who has completed his fourteenth year of age but has not completed his eighteenth year whereas ‘child’ under section 4(ii) means a person who has not completed his fourteenth year of age.[11]
The Act guarantees an absolute right to a ‘child’ and an ‘adolescent’ under section 3 and 3A of the Act respectively which edicts that no child be employed or permitted to work in any occupation or process, provided that no such work should impede the school education of the child and unless the Central Government specifies the nature of the non-hazardous work to which an adolescent maybe permitted to work.
The said Act regulates conditions of work in occupations where the children or adolescents are not prohibited from working as well as lays down enhanced penalties for employment of children in violation of the provisions of the Act. Any employment in contravention with section 14 of the Child Labour (Protection and Regulation) Act, 1986 is punishable with imprisonment for a term which shall not be less than six months but which may extend to two years, or with a fine which shall not be less than twenty thousand rupees but which may extend to fifty thousand rupees or with both.
C. Right to Education Act, 2009[12].
Right to Education was first recognized internationally after the initiation of Article 26 of the Universal Declaration of Human Rights adopted in 1948. Although all the international covenants have mandated that education must be provided at the basic level so as to supplement the socio-economic development of the child, however, education which was already a part of the Directive Principle of the State Policy was made a fundamental right by the 86th Constitutional Amendment Act, 2002 but right to free and compulsory education was brought in by way of Right to Education Act, 2009 which represents the consequential legislation under Article 21-A of the Indian Constitution.[13]
The Act lays down that as per section 3(1) every child between 6-14 years age group shall be provided free and compulsory elementary education. Further, section 7(1), (2), (3), (4) & (5) elaborates that all the expenses incurred in this regard shall be borne by the State & the Central Government, which establishes that no expenses shall be laid on the parents in any form.
The Act envisages under section 23 that there shall be an appointment of appropriately qualified teachers to meet the minimum standard of education, further also mandates that there shall be complete prohibition on any form of physical punishment, which may cause mental trauma to a child or may hinder the developmental aspect of a child.
D. Protection of Children from Sexual Offences (POCSO) Act, 2012.
The Protection of Children from Sexual Offences Act, 2012 was enacted as a comprehensive and robust legal framework to provide for the protection of children from offences of sexual assault, sexual harassment and pornography, while safeguarding the interest of the child at each step of the judicial process. The Act envisages mechanisms that would ensure a more child-friendly reporting, recording of evidence, investigation and speedy trial of offences through designated special courts.[14]
The POCSO Act is gender-neutral and defines the child as any person below the age of 18 years. The Act recognizes forms of penetration other than penile-vaginal penetration and criminalizes immodesty against children. Offences include:
- Penetrative Sexual Assault (Section 3).[15]
- Aggravated Penetrative Sexual Assault (Section 5).
- Sexual Assault (Section 7).
- Aggravated Sexual Assault (Section 9).
- Sexual Harassment (Section 11).
- Child Pornography (Section 14).
The Act was enacted as part of the Child Protection Policies of India and under Article 15 (3) of the Constitution of India, which empowers the State to make special provisions for children. Previously there had been calls for more stringent laws for the protection of children from sexual offences since child sexual abuse was prosecuted under the Indian Penal Code, 1860 which by no means was a special act and could not effectively protect the child due to several loopholes.
It does however cover and define sexual offences. The loopholes would allow the accused to be set free due to various reasons as enumerated hereunder:
- Section 354 of the Indian Penal Code, 1860 meagerly defines ‘modesty’. It carries a weak penalty and is a compoundable offence. Moreover, it does not protect the ‘modesty’ of a male child.
- Section 375 of the Indian Penal Code, 1860 does not protect male victims or anyone from sexual acts of penetration other than ‘traditional’ penile-vaginal intercourse.
- Section 377 of the Indian Penal Code, 1860 does not define ‘unnatural offences’ and is not designed to criminalize the sexual abuse of children.
Upon perusal of the said Act, it becomes apparent that the Act endeavours to ease out the Judicial Process for the children by making it child friendly. It prescribes mandatory reporting by any person who has considerable information about a case of child sexual abuse and the failure to do so is punishable under the Act to the extent of imprisonment up to 6 months or fine or both. The said Act casts special responsibilities on police as protectors during the investigation, medical professionals to examine in such a manner that causes as little distress as possible to the child and the designation of Special Courts under section 28 and Special Public Prosecutors under section 32 of the POCSO Act, 2012.
E. Juvenile Justice (Care & Protection) Act, 2015[16]
The Juvenile Justice (Care and Protection) Act of 2015 had come into being by replacing the earlier Juvenile Justice (Care & Protection) Act, 2000. In the year 1992 India had ratified the United Nations Convention on the rights of children due to which various changes in the legislation were effectuated.
Among various aspects, the basic aim of the Act has been to provide care, protection, rehabilitation, development and social reintegration of the child. Section 4(1) stipulates that there shall be a Juvenile Justice Board as per the mandates of the Act and section 27 states that there shall be one or more Child Welfare Committee at all the district levels with at least one woman in the committee.
It further prescribes a timeline within which the inquiry/investigation must be completed which supplements speedy trials. After the recent amendment in the Act, section 15 of the Act states that the power to decide whether the juvenile (16-18 years age group) shall be tried as an adult or as a juvenile in heinous offences, shall vest with the board constituted under the Act. Among other mandates, the central adoption resource authority has been given a status of the statutory body which will improve and regularize the processes involved in the adoption of orphaned, abandoned or surrendered children due to which compliance with the mandates of the Act will also be ensured.
V. Conclusion
There seems to be no doubt about the comprehensive robust legislative framework created for the protection of children in India and the State must be credited for the same, however, much attention needs to be given towards the implementation starting at the very grass root level. At times it is due to laxity in following the procedural mandates, which has cost grave injustice to most innocents.
The dynamics of the evolving human cycle are being taken care of by the lawmakers as there have been major amendments in the laws relating to children & adolescents and the process has been under constant metamorphosis. However, the area of imparting compulsory education still needs serious attention whether it is regular scrutiny of schools or appointment of teachers. Since the Right to free and compulsory education was enacted in 2009, the results of the same could be studied in the forthcoming years.
It would be appropriate to have concerns regarding the attainment of millennium development goals vis-à-vis child rights & protection, as one could only achieve if along with the right path a little speed could be picked up. In the year 2018, the Juvenile Justice (Care & Protection) Amendment Bill was laid in the parliament which was supposed to bring massive reformations in the said Act, however, the bill lapsed and till date, the same has been in abeyance, but amendments in the same could be expected in the forthcoming years.
It is gravely understood the importance of providing protection to the children but it is, however, the rehabilitation of children affected and victimized that needs our utmost attention. Seemingly statutes such as POCSO reverberate compensation and rehabilitation for the victim and their families but the reality is grim and often allows the families and the victims to turn hostile and stop cooperating.
There have been various instances where the cumbersome process through which the victim/victim’s family has to go through for obtaining rehabilitation and compensation, has led to the loss of interest as the dilatory conduct in administration frustrates the very purpose.
The paltry amount of compensation and rehabilitation measures limited only to the extent of providing Legal Aid should not be considered as Rehabilitation Scheme at all, in fact, measures should be taken to ensure that the victims and their families are counselled and edified in a manner that has a definite bearing on their rehabilitation and social integration.
[1] “Thoughts”, Think Magazine, March, 1962, p.32
[2] MULTER, Abraham J., in Wener v. Wener, New York Law Journal, June 18,1969, p.19, cols. 5-8
[3] The meaning of the child and the rights of children, Available Here
[4] The Constitution of India, 1950
[5] International Covenant on Civil and Political Rights, Available Here
[6] Minimum age convention, 1973
[7] Convention on the Rights of the Child text, Available Here
[8] UNICEF annual report 2019 For every child, reimagine, Available Here
[9] The Children Act, 1960
[10] http://ncwapps.nic.in/.pdf
[11] Child Labour (Protection and Regulation) Act, 1986
[12] The Right to Education Act, 2009
[13] The Constitution of India, 1950
[14] Model Guidelines under Section 39 of The Protection of Children from Sexual Offences Act, 2012, Available Here
[15] Protection of Children from Sexual Offences (POCSO) Act, 2012
[16] Juvenile Justice (care & protection) Act, 2015
